Appeal, No. 201, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, April T., 1949, No. 1756, in case of John F. Zawacki v. The Pennsylvania Railroad Company. Judgment affirmed.
John E. Evans, Sr., with him Evans, Ivory & Evans, for appellant.
Bruce R. Martin, with him Dalzell, Pringle, Bredin & Martin, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This is an appeal from the refusal of the court below to take off a non-suit entered in a trespass action for personal injuries and property damage, suffered by the plaintiff in a collision between the defendant's train and the plaintiff's truck. The non-suit was entered on a finding that the plaintiff was "guilty of contributory negligence as a matter of law" and that plaintiff's proof fell "far short of the proof required to show wilful or wanton misconduct." We take the evidence in a light most favorable to the plaintiff, who must be given the benefit of every inference therefrom. Viewed in this manner the facts are: About 11:30 A.M. on a clear, dry day plaintiff was driving his 1 1/2 ton dump truck, loaded with about 4 tons of rock, on Railroad Street in East Vandergrift. The double tracks of the defendant cross this street in an east-west direction. At the crossing where the collision occurred the tracks are straight for about 1500 feet in each direction. The approach to the track has an upgrade slope of 30 degree; the plaintiff stopped at the foot of the grade and looked to his right and left, but his view was limited to 200 feet. He proceeded in low gear and stopped one or two feet from the first rail of the set of tracks nearest to him. He then saw the train "about 600, maybe 700 feet away" approaching at a speed he estimated to be "about ten miles an hour or fifteen," and noted that it consisted of an engine, tender and caboose. He thought the train "was on the opposite set of tracks from the one it was riding on," and "figured I could beat it over." He attempted to make the crossing at about 4 to 6 miles per hour, but when his front wheels were at the second rail of the first set of tracks, the motor stalled for a reason unknown to him. At this
moment the train was about 200 feet away. He succeeded in starting the motor within "a half minute to a minute," but only went two or three feet when his truck was struck "right in the door" of the cab. He further testified there had been no whistle sounded nor bell rung on the locomotive. The plaintiff called the engineer who testified that he sat on the right side of the engine and "... we don't have our eyes just on the rails. We have our eyes generally in view of everything, everything ahead. Of course you get a glance, your vision is the rail and the crossing and the -- you are looking at everything in general, not just one particular thing." He further testified that he did not see the plaintiff's truck until the collision. He applied emergency brakes when the fireman called out that there was a truck on the crossing. He testified that he was travelling at a rate of 20 to 22 miles per hour, and thinks he could have stopped in 100 feet after applying the brakes, there being a second lost in reaction. He was not contradicted and the plaintiff was bound by his testimony.
The recited facts leave no doubt that fair and reasonable persons would agree that the plaintiff was negligent. See Davis v. Feinstein, 370 Pa. 449, 452, 88 A.2d 695. Therefore the plaintiff can succeed only if the defendant's employes were guilty of wanton misconduct.
"... wanton misconduct is something different from negligence however gross, -- different not merely in degree but in kind, and evincing a different state of mind on the part of the tortfeasor. Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong:" Kasanovich, Admrx. v. George et al., Trustees, 348 Pa. 199, 203, 34 A. id 523. "... the cases in
which wanton misconduct was found to exist were those in which the tortfeasor had actual knowledge of a victim's peril but nevertheless pursued his tortious course with utter indifference to the outcome": Engle v. Reider, 366 Pa. 411, 418, 77 A.2d 621 (Italics supplied). Therefore there is nothing in this case to bring the plaintiff within the protection of the rule as to wanton misconduct. The most that can be said is that the engineer's failure to see the truck was the result of careless inattention, thus convicting him of negligence. There is no evidence that defendant knew that plaintiff was in a position of danger. There were no proven facts to permit the jury to find that the "engineer, from the facts known to him, should have realized the imminent danger... and, with a conscious disregard of the consequences of his act, he operated his train and permitted it" to collide with the truck: Turek v. Pennsylvania Railroad Company, 369 Pa. 341, 85 A.2d 845. The plaintiff relies upon Peden v. B. & O. R.R. Co., 324 Pa. 444, 188 A. 586, but in that case the two railroad employes who denied having seen the children, though they were looking at the tracks, testified on behalf of the defendant, and the plaintiff was not bound by their testimony. In the present case the engineer was called by the plaintiff, who is bound thereby; and there was no evidence introduced which contradicted the positive statement that he did not see the truck. Unless the engineer was concentrating on the right rail of the track immediately in front of him, he could not ...